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Buxton v. Dougherty

United States District Court, W.D. Pennsylvania

July 23, 2018

ANDY BUXTON, Plaintiff,
v.
IVA C. DOUGHERTY, et al, Defendants.

          MEMORANDUM OPINION

          Joy Flowers Conti Chief United States District Court Judge.

         The Second Amended Complaint in the present action was filed with this court on September 22, 2017. (ECF No. 46). The case was referred to a United States magistrate judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rules of Court 72.C and 72.D.

         Before the court are three Reports and Recommendations (individually, an "R&R") of the magistrate judge (ECF Nos. 101, 102, and 108), recommending as follows:

1. R&R dated March 8, 2018 (ECF No. 101): Motion for Summary Judgment filed by defendant Paul Iannetti (ECF No. 77) be granted, and that the Motion to Deny Motion for Summary judgment filed by plaintiff Andy Buxton ("Plaintiff) (ECF No. 81) be denied; 2. R&R dated March 13, 2018 (ECF No. 102): Defendant Rivers Casino's Motion to Dismiss (ECF No. 61) be granted and that all of Plaintiffs claims against Rivers Casino be dismissed with prejudice; and 3. R&R dated April 27, 2018 (ECF No. 108): The Motions to Dismiss for failure to state a claim (ECF Nos. 53, 58, 92, 98) filed by defendants Pennsylvania Office of Attorney General, Iva C. Dougherty ("Dougherty"), Katie A. Wymard ("Wymard"), Richard Miller ("Miller"), Robert Marsili ("Marsili"), Andrew Toth ("Toth"), Christopher Antonucci ("Antonucci"), Scott Shank ("Shank"), Dan Sammartino ("Sammartino"), Allegheny County, City of North Huntingdon ("North Huntingdon") and Amber Noel ("Noel") be granted and that all claims against those defendants be dismissed with prejudice.

         In each instance the parties were informed that in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule of Court 72.D.2, they had fourteen days to file any objections and that failure to file timely objections will constitute a waiver of appellate rights. Plaintiff filed Objections to the Reports and Recommendations (ECF Nos. 105, 106, 109) and one defendant, Iannetti, filed a Response in Opposition (ECF No. 107). The matter is ripe for disposition.

         The district court must make a de novo determination of those portions of a report to which objections are made. 28 U.S.C. § 636(b)(1)(C); see Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir.1987). The court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court may also receive further evidence or recommit the matter to the magistrate judge with instructions.

         After a review of the Plaintiffs objections, the court concludes that some have merit, but most do not, and will adopt in part and reject in part the R&Rs as the Opinion of the court.

         1. Objections Applicable to All Three R&Rs

         a. Blanket Challenge to Magistrate Judge Authorization

         The first objections to be addressed are related to the powers granted to the magistrate judge by statute and local rule, as mentioned supra. In each of his three objections to the R&Rs, Plaintiff objects "to the Magistrate Judge in regards she is not authorized to hear nor recommend that plaintiff [sic] case be dismissed." (ECF No. 105 at 1, No. 106 at 1, No. 109 at 1). These objections are overruled. The Magistrate Judges Act provides express authorization for the district court judge to designate a magistrate judge to "submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court," of dispositive motions. 28 U.S.C. § 636(b)(1)(B). Plaintiff was afforded an opportunity, by statute and local rule, to file any objections to the magistrate judge's recommendation, and the recommendation is subject to de novo review. 28 U.S.C. § 636(b)(1)(B); LCvR 72D. This Memorandum Opinion reflects the de novo review to which the parties are entitled.

         b. Request for Appointment of Counsel

         Plaintiff objects to the court's failure to appoint counsel citing the complexity of his case. (ECF Nos. 105 at 1, 109 at 1; see 106 at 1). These objections are overruled. "[I]ndigent civil litigants possess neither a constitutional nor a statutory right to appointed counsel." Gordon v. Gonzalez, 232 Fed.Appx. 153, 156 (3d Cir. 2007) (quoting Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). This matter was previously explained to Plaintiff in a Memorandum Order dated November 3, 2017. (ECF No. 71 at 1). To the extent Plaintiff seeks reconsideration of that ruling, the request is denied, for the reasons stated in that same Order and because he did not present any evidence or argument which would change the court's discretionary decision after application of the factors set forth in Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).

         2. Obj ecti ons to R&R 101: Defendant Iannetti

         Next, Plaintiff objects to the recommendation that because he failed to comply with the legal requirement that he file a certificate of merit ("COM"), attorney Iannetti's Motion for Summary Judgment be granted and that Plaintiffs claims against attorney Iannetti be dismissed with prejudice.[1] The magistrate judge was correct in her analysis. The requirement that litigants comply with the COM requirements apply with equal force to pro se litigants, as the case law cited in the R&R holds. Hodge v. U.S. Dept. of Justice, 372 Fed.Appx. 264, 267 (3d Cir. 2010); Iwanejko v. Cohen & Grigsby, P.C. 249 Fed.Appx. 938, 944 (3d Cir. 2007). Even so, rather than accepting the recommendation that summary judgment be granted and judgment entered in favor of Ianetti, the court will instead grant Ianetti's motion to dismiss (ECF No. 63). This disposition is appropriate under the circumstances and procedural posture of the case. See Schmiegal v. Uchal, 800 F.3d 113, n.13 (3d Cir. 2015) (explaining impact of the difference in deadlines for filing a motion for summary judgment vis. motion to dismiss under the Federal Rules of Civil Procedure on the grounds of failure to meet COM requirements under Pennsylvania law). Any attempt at amendment would be futile, and the dismissal as to Iannetti[2] is with prejudice.

         3. Objections to R&R 102: Defendant Rivers Casino

         In his Second Amended Complaint Plaintiff alleges defendant Rivers Casino provided falsified documents to agents of the Commonwealth Attorney General's Office that were thereafter used in criminal proceedings against him. He alleges that Rivers Casino engaged in a civil conspiracy with other defendants to deny his rights as ...


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